Leitfaden Großbritannien

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THEMAGroßbritannien
Gesetzliche Regelungen
Sondergesetze zu ComplianceThere is no single piece of legislation in Great Britain relating to Compliance as such. Compliance tends to be sector specific for which specific legislation and rules have been promulgated.

A company is a legal person and, in principle, can be prosecuted for criminal offences.

It is a fundamental principle of English criminal law that, unless expressly otherwise provided or as a result of necessary implication, all offences require both a mental element (mens rea) and an action element (actus reus ). The action element may relate to the defendant's conduct or the consequences of such conduct. The mental element will relate to the state of mind of an individual at the time of the doing which may range from intent through knowledge to recklessness. Most offences created at common law or by statute therefore have both elements with the mental element being identified by a requirement that the action was accompanied by a particular state of mind.

If, by express provision or necessary implication, a state of mind is not required for a criminal offence, it is described as an offence of "strict liability". Here, generally speaking, all that the prosecution need to prove is the conduct element of the offence.

The Identification Principle
The requirement of the mental element of an offence (mens rea) has made it difficult to prosecute companies because it is often difficult to identify someone who was the "directing mind of the company " or "an embodiment of the company ".

It will normally be the senior officers of a company or senior managers who are very close to the board or to whom specific management authority has clearly been delegated whose acts are capable of being identified with the company, as opposed to the acts of someone who is merely an agent or employee

Strict liability offences
Where expressly or by implication, the mental element is not required for the commission of an offence, the commission of the prohibited act alone gives rise to the offence. Unless it is possible to show that the person committing the act was not acting voluntarily, e.g. under duress, liability is absolute and there is no defence.

Common law and statutory offences
English law adopts the principle nullum crimen, nulla poena sine lege. Criminal offences are therefore largely created by statute, though the common law is important in determining liability, as noted above.

Generell zu berücksichtigende Gesetze bzw. Richtlinien• Companies Act 2006 and subordinate legislation
• Financial Services and Banking legislation
• Health & Safety at Work legislation
• Competition legislation – Enterprise Act 2002
• Data protection legislation including the General Data Protection Regulation 2016 and domestic legislation which is being introduced to replace it.
• Pensions Act 2008
• Bribery Act 2010
• UK Corporate Governance Code 2016 – 2018
• Other specific statutes (for examples, see below)


Haftung des Unternehmens
Unternehmensstrafrecht – Voraussetzungen und RechtsfolgenThere is no overriding legislative provision in Great Britain which creates criminal liability for corporations and undertakings.

There are a number of specific statutes which create criminal offences for companies and organisations. Three statutes in particular seek to address, in relation to specified offences, the difficulties in establishing corporate criminal liability.
Under the Corporate Manslaughter and Corporate Homicide Act 2007, an organisation can be found guilty of an offence if the way in which its activities are managed or organised causes a person's death and this amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
The Act replaced the previous common law rules of involuntary manslaughter by gross negligence as applied to organisations. It is not only directors of a company who can commit an offence: the threshold for corporate criminal liability is substantially lower and can include individual senior managers. This improves the position under the previous law, which required proof that a "directing mind" (that is, an individual at the very top of the company, who could be said to embody the company in his actions and decisions) was personally guilty of manslaughter (see comments above on the "identification principle"). If there was insufficient evidence to convict such an individual, the prosecution of the company failed. This is no longer the case, and the risk of liability is therefore much greater.

Under the Bribery Act 2010 a company can be criminally liable for failing to prevent bribery by associated persons acting on their behalf (s.7). Associated persons include people working for the company abroad over whom there is little or no effective control. This is a strict liability offence and no mens rea is required on the part of those representing the corporation. The only defence is that the corporation had adequate procedures in place to prevent bribery. The Serious Fraud Office won its first case under section 7 when Sweett Group plc pleaded guilty in December 2015 to a charge of failing to prevent an act of bribery intended to secure and retain a contract. It was fined $25.2m, and ordered to pay $7m to the Government of Tanzania and £330,000 in costs to the SFO. Unfortunately, cases under the Bribery Act have been settled up to now so the courts have not been able to provide any guidance or views on them

The Criminal Finances Act 2017 creates the corporate criminal offences of failing to prevent the criminal facilitation of UK and foreign tax evasion. The only defence is that the organisation had reasonable procedures in place.

Other statutes and regulations too numerous to list here create criminal liability for corporations. For example, under the General Product Safety Regulations 2005, manufacturers and suppliers of products can incur criminal and civil liabilities if their products are defective. Further the Health & Safety at Work legislation creates criminal liability for companies and individuals, much of which is sector specific. The Financial Services and Markets Act 2000 regulates the provision of financial services and provides for criminal penalties for acts which constitute financial crime. This is defined as including any offence involving fraud or dishonesty, misconduct in, or misuse of information relating to, a financial market, handling the proceeds of crime, and the financing of terrorism.

Sonstige strafrechtliche Haftungsrisiken –
Voraussetzungen und Rechtsfolgen
This depends on the crime involved and the interpretation of the statute or regulation imposing liability. For example, corporate liability is expressly excluded for insider dealing and the criminal cartel offences.

A corporate entity can be vicariously liable, both under civil and criminal law, for the acts of ist employees and agents – usually for strict liability offences (see above). Many strict liability offences are imposed by statute or regulation often in a regulatory context such as environmental, health and safety, food and drug safety and trading standards.

Zivilrechtliche bzw. sonstige Haftungsrisiken – Voraussetzungen und RechtsfolgenIn addition to the criminal penalties that can be imposed on an organisation, the following risks arise from criminal conduct:

• Reputational damage
• Withdrawal of consents
• Demands for the repayment of grants and withdrawal of tax advantages
• Exclusion from bidding processes
• Claims for breach of contract
• Class actions for damages, e.g. in cartel cases.


Haftung der Geschäftsleitung
Strafrechtliche Haftungsrisiken – Voraussetzungen und RechtsfolgenThis depends on the terms of the legislation and it is possible for the individual who commits the act as well the corporation which employs him to incur criminal liability. For example the Bribery Act 2010 creates separate offences for individuals and corporations. The Companies Act 2006 contains many offences that can be committed by the senior management. Other regulatory and compliance legislation imposes criminal liability on management who fail to comply with their statutory duties.
Zivilrechtliche- bzw. sonstige Haftungsrisiken – Voraussetzungen und RechtsfolgenCivil liability arises in contract (e.g. for breach of contract) or in tort (a civil wrong). Contractual liability will depend on the terms of the contract. The most common tort is the tort of negligence which is based on an infringement of the duty to take reasonable care. For liability to arise in tort, the relationship of the parties must be such as to give rise to a duty of care, owed by one person to another. Lord Atkins said in Donoghue v Stevenson [1932] AC 562: " The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question".

A duty of care can arise by statute, by implication in a contract or at common law. The remedies in tort are, generally, damages, an injunction or restitution.
Haftungsvermeidung
GenerellMuch compliance regulation in the UK is "outcomes based". Often, no guidance is contained in the legislation as to how a compliance programme should be introduced and it is up to individual companies to decide how to achieve the outcome in a manner that addresses their particular circumstances.

Broadly speaking, compliance with a statute can be demonstrated by showing:
• Fairness and transparency by being open and honest with regulators and the courts; and
• Accuracy of internal procedures matching the requirements in statute. Importantly, these need to be kept up to date, and incorporating recomendations from case law can be particulary persuasive.
• Leadership by management in creating a compliance culture.
• Staff have been properly informed of their duties and given adequate training.
• Detailed written records documenting compliance are maintained.


Deferred Prosecution Agreements (DPAs)

A prosecuting authority may enter into a deferred prosecution agreement with an undertaking as an alternative to prosecution. DPAs were created by Schedule 17 to the Crime and Courts Act 2013 (CCA 2013). A DPA is a discretionary tool to provide a way of responding to alleged criminal conduct. The undertaking is not subjected to formal prosecution but will agree to a course of conduct where any prosecution is deferred for a period of time. At the conclusion of the DPA, if the subject has complied with all the necessary obligations contained within the DPA, the matter is concluded without prosecution. DPAs are also governed by a Code of Practice (DPA Code) published by the Serious Fraud Office (SFO) and the Crown Prosecution Service (CPS).
Konkretes Beispiel

Verfasser:

Stephen Morrall
Partner
Hunters Solicitors
T: +44 (0)20 7412 5107
F: +44 (0)20 7404 1223
jsm@hunters-solicitors.co.uk
www.hunters-solicitors.co.uk

 

Kategorien: Großbritannien